Judge: Mary H. Strobel, Case: 21STCP01008, Date: 2022-12-13 Tentative Ruling

Hon. Mary H. Strobel

The clerk for Department 82 may be reached at (213) 893-0530.

Case Number: 21STCP01008    Hearing Date: December 13, 2022    Dept: 82

            Petitioners Joel Abergel (“Abergel”) and The Druggist Inc. (“Druggist”) (collectively “Petitioners”) petition for a writ of administrative mandate directing Respondent California State Board of Pharmacy (“Respondent” or “Board”) to set aside a decision revoking Abergel’s pharmacist license and Druggist’s pharmacy permit, staying the revocations, and placing Petitioners on probation for five years.

Background

Petitioners’ License and Permit

On September 26, 1987, the Board issued Original Pharmacist License Number RPH 41192 to Abergel.  (AR 2378-81.) On June 10, 2010, the Board issued Original Pharmacy Permit Number PHY 50136 to Druggist. (Ibid.) At all relevant times, Abergel has been the owner, President, and Pharmacist-in-Charge of Druggist.  (Ibid.)  At all times relevant to this matter, Druggist was a retail pharmacy operating at 27867 Smyth Road, Valencia, California 91355.  (Ibid.) 

Board’s Accusations and Decision Disciplining Petitioners’ License and Permit

            On May 3, 2016, Complainant Virginia Herald, in her official capacity only as Executive Officer of the Board, filed Accusation 5321 against Petitioners.  (AR 121-33.) Accusation 5321 was subsequently amended and, the Third Amended Accusation proceeded to hearing before Laurie R. Pearlman, Administrative Law Judge (“ALJ”), on April 8-11 and April 22-23, 2019. (AR 8-9.) The Third Amended Accusation charged Petitioners with three causes for discipline: (1) Failure to Assume Co-Responsibility in Legitimacy of a Prescription; (2) Failure to Keep Complete Accountability; and (3) Failure to Notify Board of Loss of Controlled Substances.  (AR 94-111.)  The Accusation arose from an inspection of Druggist’s pharmacy on December 19, 2012, by Board inspectors Venegas and Ngondara, and a subsequent investigation.  (AR 100-105.)

 Multiple witnesses testified at the administrative hearing, including Board inspector Venegas (AR 727), Board inspector Ngondara (AR 1006), LASD Detective Velek (AR 1210), LAPD Officer Juan Gomez (AR 1302), and LASD Detective Davis (AR 1336). Petitioner Abergel, represented by counsel, testified in his defense, as did his wife Elaine Abergel, two Druggist pharmacy employees, and two character witness.  (See AR 8-33; Oppo. 10.)

On October 9, 2019, the ALJ issued her proposed decision for dismissal of the Third Amended Accusation. The Board initially adopted the proposed decision by order dated December 16, 2019.  (AR 589-624.)  However, after granting the Complainant’s petition for reconsideration, ordering the transcript, and soliciting written argument from both parties, the Board issued its Decision After Reconsideration effective February 24, 2021. (AR 5.) The final Decision After Reconsideration determined that Petitioners’ licenses were subject to discipline for each of the three causes for discipline.  As a penalty, Board revoked Abergel’s license and Druggist’s permit, but stayed the revocations subject to five years’ probation under certain terms and conditions.  (AR 1-53.)

Writ Proceedings

            On April 2, 2021, Petitioners filed their petition for writ of administrative mandate.  On May 10, 2021, Petitioners filed their amended petition for writ of mandate.  Respondent has answered.  On October 14, 2022, Petitioners filed their opening brief in support of the petition.  The court has received Respondent’s opposition, Petitioners’ reply, the administrative record, a joint appendix lodged by Petitioners, Respondent’s “declaration re deficiencies in joint appendix and notice of lodgment of Respondent’s excerpts of administrative record,” and a joint appendix lodged by Respondent on or about December 9, 2022.

            Petitioners did not lodge a joint appendix consistent with the court’s guidelines.  Nonetheless, the court, in its discretion, has considered both joint appendices lodged by the parties.  While Respondent argues there were deficiencies in Petitioners’ appendix, Respondent lodged a new appendix that includes Respondent’s citations to the record.  Also, the electronic administrative record has been lodged, and it includes all citations of both sides.  Thus, there is no prejudice to Respondent from the deficiencies in Petitioners’ appendix. 

In the opening brief, Petitioners cite to some evidence by reference to the Exhibit number from the administrative proceedings.  This was improper.  Petitioners were required to “cite to specific pages of the record (e.g., AR 56-57).”  (See Local Rule 3.231(i)(2).)  While the court has located Petitioners’ citations, Petitioner’s failure to appropriately cite to the AR page number instead of the exhibit number made it more difficult and time-consuming for the court. 

Standard of Review

Under CCP section 1094.5(b), the pertinent issues are whether the respondent has proceeded without jurisdiction, whether there was a fair trial, and whether there was a prejudicial abuse of discretion.  An abuse of discretion is established if the agency has not proceeded in the manner required by law, the decision is not supported by the findings, or the findings are not supported by the evidence.  (CCP § 1094.5(b).)

Because the discipline on Petitioners Abergel’s license and Druggist’s permit concerns a fundamental vested right, the court exercise its independent judgment in reviewing the administrative findings.  (See Sandarg v. Dental Bd. of California (2010) 184 Cal.App.4th 1434, 1440; CCP § 1094.5(b).)  Under the independent judgment test, “the trial court not only examines the administrative record for errors of law, but also exercises its independent judgment upon the evidence disclosed in a limited trial de novo.”  (Bixby v. Pierno (1971) 4 Cal. 3d 130, 143.)  The court may draw its own reasonable inferences from the evidence and make its determinations as to the credibility of witnesses.  (Morrison v. Housing Authority of the City of Los Angeles Board of Commissioners (2003) 107 Cal. App. 4th 860, 868.)  “In exercising its independent judgment, a trial court must afford a strong presumption of correctness concerning the administrative findings, and the party challenging the administrative decision bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence.”  (Fukuda v. City of Angels (1999) 20 Cal. 4th 805, 817; see also Evid. Code § 664.)

Petitioners must demonstrate, by citation to the administrative record, that the evidence supports their position.  (See Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28, 32; Bixby v. Pierno (1971) 4 Cal. 3d 130, 143; see also Local Rule 3.231(i).) A reviewing court “will not act as counsel for either party … and will not assume the task of initiating and prosecuting a search of the record for any purpose of discovering errors not pointed out in the briefs.” (Fox v. Erickson (1950) 99 Cal.App.2d 740, 742; see also Inyo Citizens for Better Planning v. Inyo County Board of Supervisors (2009) 180 Cal.App.4th 1, 14.)  When an appellant challenges “’the sufficiency of the evidence, all material evidence on the point must be set forth and not merely [his] own evidence.” (Toigo v. Town of Ross (1998) 70 Cal.App.4th 309, 317.) 

At the agency level, “the standard of proof to revoke a professional license is clear and convincing evidence....”  (Lone Star Sec. & Video, Inc. v. Bureau of Sec. and Investigative Services (2012) 209 Cal.App.4th 445, 454.)  “For almost 45 years, California trial courts have followed the rule laid down by Chamberlain [69 Cal.App.3d 362] that a trial court exercising its independent judgment under … section 1094.5 must determine whether the administrative agency's findings are supported by the preponderance of the evidence, notwithstanding the clear and convincing evidence standard of proof applied in the underlying administrative proceeding.”  (Li v. Sup. Ct. (Sept. 30, 2021) 69 Cal.App.5th 836, 843; see also Yazdi v. Dental Board of California (2020) 57 Cal.App.5th 25, 33 and Ettinger v. Board of Medical Quality Assurance (1982) 135 Cal.App.3d 853, 856 [“[T]he weight of the evidence standard…. is considered to be synonymous with the preponderance of the evidence standard.”].) 

Recently, however, the Court of Appeal held that “ a trial court reviewing an administrative agency's findings under the independent judgment standard of review in section 1094.5 must … account for the standard of proof required and applied in the underlying proceeding.”  (Li v. Sup. Ct. (Sept. 30, 2021) 69 Cal.App.5th 836, 844.)  The Court found “no merit in the board's argument that requiring the trial court to account for the clear and convincing standard of proof in the underlying administrative proceeding when applying independent judgment review to the findings would conflict with the principles of deference or presumptive correctness laid down in Fukuda.”  (Id. at 865.)  Because the California Supreme Court has not addressed this issue, there appears to be a conflict between Li and prior cases, including Ettinger and Yazdi, regarding the standard of review in this writ action.  As between the two lines of cases, the court finds the reasoning in Li to be more persuasive.  In the court’s analysis below, the court uses the phrase “weight of the evidence” to refer to sufficient evidence to support a finding taking into account the clear and convincing evidence standard of proof applicable at the agency level with respect to the revocation of Abergel’s license.  In any event, the court would reach the same result whether or not taking into account the clear and convincing standard.

The opposition asserts many times in its brief that the Board’s findings are supported by “substantial evidence.”  (Oppo. 11-17.)  Under either the reasoning of Yazdi or Li, that is the wrong standard of review.  The independent judgment standard is applicable. 

Analysis

Petitioners Received a Fair Hearing

Under CCP section 1094.5(b), the pertinent issues include whether there was a fair trial.  “Generally, a fair procedure requires ‘notice reasonably calculated to apprise interested parties of the pendency of the action ... and an opportunity to present their objections.’”  (Doe v. University of Southern California (2016) 246 Cal.App.4th 221, 240.) Procedural errors, “even if proved, are subject to a harmless error analysis.”  (Hinrichs v. County of Orange (2004) 125 Cal.App.4th 921, 928.)   “A challenge to the procedural fairness of the administrative hearing is reviewed de novo on appeal because the ultimate determination of procedural fairness amounts to a question of law.”  (Nasha L.L.C. v. City of Los Angeles (2004) 125 Cal.App.4th 470, 482.) 

Although the argument is not fully developed, Petitioners appear to contend that they did not receive a fair procedure when Board granted reconsideration of its initial decision.  Petitioners state that they “never received a copy of DAG Malek’s June 18, 2020 written arguments in support of her petition for reconsideration until after Petitioners were required to submit their petition for reconsideration.”  (Opening Brief (“OB”) 3-4.)  Petitioners state that the Board “relied on misleading evidence that Petitioners could not fairly defend against.”  (Ibid.) 

Petitioners provide no citations to the record in support of these contentions.  Further, Board’s decision shows that Board permitted Petitioners to submit written arguments before Board made its decision after reconsideration.  (AR 10.)  Petitioners do not show they were deprived a fair procedure before Board, including in the reconsideration proceedings. 

ALJ’s Decision

            Petitioners contend that the ALJ’s decision should be “reinstated,” and that the Board abused its discretion in “overturning” the ALJ’s decision.  (OB 5, 15.)  The decision under review by this court is the Board’s final decision.  (See AR 1-53; Gov. Code §§ 11425.10(a)(6) & 11517(c)(2)(E).)  Because the ALJ’s decision was not adopted by the Board, it is not the decision subject to the court’s review under CCP section 1094.5.  (See Compton v. Bd. Of Trustees (1975) 49 Cal.App.3d 150, 158.) However, the court understands Petitioners to argue that Board’s findings and decision are not supported by the weight of the evidence.  That issue is addressed next.   

The Weight of the Evidence Supports Board’s Factual Findings and Legal Conclusions

            First Cause for Discipline

            Board found that Petitioners are subject to discipline under the first cause for discipline for failure to assume co-responsibility in legitimacy of a prescription, in violation of title 16, California Code of Regulations, section 1761(a), multiple provisions of the Business and Professions Code, Health and Safety Code section 11153(a), and Vermont & 110th Medical Arts Pharmacy, discussed infra.  (AR 39-41.) 

Board found that Petitioners violated these duties in 2011 and 2012 when Petitioners filled prescriptions for controlled substances for individuals who were supposedly patients at Pain Management Physicians in Van Nuys, California (“Clinic”) and also when Petitioners filled prescriptions for Michael Lyadda and his associates.  The Board found Petitioners filled those prescriptions despite suspicious circumstances surrounding both Clinic and Lyadda, and Petitioner failed to sufficiently inquire into the legitimacy of the prescriptions.  As Board wrote, “[i]n September 2011, law enforcement agents raided the Clinic and arrested its manager, who had been operating a ‘pill mill’ and diverting prescription opioids.”  (AR 15.)  Abergel visited the Clinic but “never spoke with any doctor.”  (AR 40-41.)  Likewise, as Abergel knew, Lyadda was under surveillance of law enforcement when Petitioners sold him controlled substances.  Lyadda was charged and convicted in April 2012 of various felonies related to possession for sale of controlled substances.  (AR 16-17.)  Board found that Petitioners, in their pharmacy work with Clinic and Lyadda, “engaged in clearly excessive furnishing of controlled substances; compounded or dispensed prescriptions which contained significant error, omission, irregularity, uncertainty, ambiguity or alteration; failed to contact prescribers to obtain the information needed to validate the prescription; or filled prescriptions for habitual doctor shoppers and erroneous/uncertain prescriptions.”  (AR 40.)

“A prescription for a controlled substance shall only be issued for a legitimate medical purpose … The responsibility for the proper prescribing and dispensing of controlled substances is upon the prescribing practitioner, but a corresponding responsibility rests with the pharmacist who fills the prescription.”  (Health & Safety Code § 11153(a).)  “Unprofessional conduct includes, but is not limited to, … the clearly excessive furnishing of controlled substances in violation of subdivision (a) of Section 11153 of the Health and Safety Code.”  (Bus. & Prof. Code § 4301(d).) In addition, a pharmacist-in-charge “shall be responsible for a pharmacy’s compliance with all state and federal laws and regulations pertaining to the practice of pharmacy.”  (Bus. & Prof. Code § 4113(c).)

In Vermont & 110th Medical Arts Pharmacy, a published appellate decision from 1981, the Court of Appeal explained that: “The statutory scheme plainly calls upon pharmacists to use their common sense and professional judgment. When their suspicions are aroused as reasonable professional persons by either ambiguities in the prescriptions, the sheer volume of controlled substances prescribed by a single practitioner for a small number of persons or, as in this case, when the control inherent in the prescription process is blatantly mocked by its obvious abuse as a means to dispense inordinate and incredible large amounts of drugs under the color and protection of law, pharmacists are called upon to obey the law and refuse to dispense. To fail to do so is either gross incompetence, gross negligence or moral turpitude.” (Vermont & 110th Medical Arts Pharmacy v. Board of Pharmacy (1981) 125 Cal.App.3d 19, 25).

            To challenge Board’s findings for the first cause for discipline, Petitioners contend that Board improperly “ignores the collection of all necessary treatment-related information obtained for each prescription, the use of CURES for each of these prescriptions …, the verification of each prescription with the corresponding physician , as well as the obtention of various diagnoses from physician (Sealed Exhibits, The Druggist Pharmacy Ex. 6, at 2-111), the refusal of certain prescriptions (Respondent Volume, Exs. A-P, at 80-106), and the aid and involvement of local law enforcement in the business operations of Petitioners—which led to the arrest of Lyadda and 14 suspects and the closure of two clinics.”  (OB 5-6.)  Petitioners contend that “the Board ignores Petitioner’s personal visit to the Clinic and the fact that Petitioner Abergel’s wife called the DEA and the Board concerning the Clinic’s practices to ensure Petitioners could deliver these prescriptions.”  (OB 5-6.)  Petitioners also claim that “the record shows countless examples of proper due diligence ran for each prescription….”  (OB 6.)  Petitioners assert, without record citation, that they “made all possible attempts to obtain CURES for every patient, which, again, was not an obligation imposed on licensed pharmacists during that time.”  (OB 6.)

            As a preliminary matter, it is not entirely accurate to state that Board “ignored” this evidence. The decision shows that Board considered that no statute or regulation mandated use of CURES reports at the time period in question; that Petitioners did refuse certain prescriptions and did obtain some CURES reports; and that Petitioners aided law enforcement in an investigation that led to the arrest of Lyadda and associates.  (AR 14-42.)  However, Board noted other factors that supported discipline, including that Petitioners ignored various “red flags” when filling the prescriptions.  (Ibid.) 

More significantly, Petitioners do not provide record citations for many of the contentions in their legal briefs, and the record citations they do provide ignore evidence relied upon by Board.  Under CCP section 1094.5, Petitioners must demonstrate, by citation to the administrative record, that the evidence supports their position.  (See Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28, 32; Bixby v. Pierno (1971) 4 Cal. 3d 130, 143; see also Local Rule 3.231(i).)   Furthermore, when an appellant challenges “the sufficiency of the evidence, all material evidence on the point must be set forth and not merely [his] own evidence.” (Toigo v. Town of Ross (1998) 70 Cal.App.4th 309, 317.)  “[T]he challenger must identify (with citations to the record) the factual findings made by the board that he or she is challenging …. And in doing so, the challenger cannot simply ignore the evidence in the record that was relied upon by the board …. Rather, the challenger must explain why that evidence is insufficient to support that finding.”  (Shenouda v. Veterinary Medical Bd. (2018) 27 Cal.App.5th 500, 513.)

The court concludes the weight of the evidence supports Board’s findings for the first cause for discipline as to prescriptions filled related to the Clinic.   Between April and August 2011, Petitioners filed prescriptions for controlled substances for individuals who purported to be patients of Clinic.  (AR 2432-33; 26-27.)[1]  In September 2011, law enforcement agents raided the Clinic and arrested its manager, who had been operating a “pill mill.”  (AR 27, 1348, 2432-33.)  Petitioner Abergel admitted to a police officer investigating the Clinic that he became suspicious of the patients with Clinic prescriptions for opioids because, despite the patients’ youth, they were prescribed strong dosages.  (AR1310-11.)[2] Many of the prescriptions were for patients who lived far from Druggist, including as far as Palm Springs, which should have been a red flag for Petitioners as to the legitimacy of the prescriptions.  (AR 24, 1316-18, 2408.)  There is evidence Petitioners filed many prescriptions in sequence and did not obtain CURES reports for many patients.  (AR 2408, 2483-2594, 2121-22.) 

On April 22, 2011, which was Good Friday, Abergel and his wife traveled to the Clinic, which had two locations.  Abergel testified that the first location was closed but that he looked through the window, saw signs with “different things for patients”, and thought it looked “okay” to him.  (AR 26, 1776.)  Abergel then went to the second location and spoke with the Clinic owners.  He did not speak with any doctors.  He testified that his intent was not to check out the legitimacy of prescriptions from the Clinic, but to try to sell them creams that he compounds.  Abergel agreed to hire a driver to deliver prescriptions he filled to the Clinic.  (AR 26-27, 1312-13, 1777-79.) 

In a letter to the Board, Petitioner later wrote: “At the end of August I think, the practice was closed.  This has left me very upset for I did not see anything wrong with them.  What an idiot I was…. This practice was the only practice we delivered to…. At this point I am so dismayed by the abuse I see … I have all but discontinued filling certain meds filling only for a very few patients that I know well and feel confident as to their legitimacy.”  (AR 2432-33.)

The court does not find the weight of the evidence supports a cause for discipline with respect to prescriptions filled for Michael Lyadda “and his associates.”  Petitioners filled a prescription for Lyadda on January 26, 2012.  (AR1847-48.) Shortly thereafter, Los Angeles Sheriff’s Department detective William Velek requested that Petitioners assist law enforcement in apprehending Lyadda.  (AR 1848.)  The detective asked Petitioners to inform them every time Lyadda came to the pharmacy.  (Id.)  Abergel testified that Velek told him to “do as normal.  Just don’t show anything, just proceed as normal.”  (AR 1852.)  Thereafter, Petitioners filled some prescriptions for Lyadda and his associates but refused to fill others.  (AR 16-17, 1489-90, 1852-54.)  Arbergel and his wife, Eilen Abergel, felt Lyadda’s associates were “sketchy” and they didn’t feel comfortable filling some of the prescriptions.  (AR 1853-54, 1489-90.)  Abergel testified that not only did he interpret the directive from law enforcement to fill Lyadda’s prescription, the officer directly told him to.  (AR 1490, 1861.)  Abergel testified Velek said “Fill as normal.  Do business as normal.”  (AR1857.) Abergel contacted law enforcement several times and urged that they arrest Velek.  Velek acknowledged it would have been normal for him to advise Abergel to make things look normal and not tip off “our hand” to Lyadda if he came into the pharmacy.  (AR1254.) 

The Board acknowledged that Petitioner and his staff provided assistance to law enforcement during the course of the 2012 investigation of Lyadda.   (AR30, ¶58.)  Board also found Petitioners credibly established that they would not have willingly continued to fill prescriptions for Lyadda and his associates, but reluctantly did so to assist the Sheriff’s Department.  (Id.)  Nonetheless the Board found Petitioners filled the initial prescriptions without hesitation, and found “asserting in hindsight that they would not have been willing to continue filling them at some point during this two-week period is not given much weight.”  (Id.)  It is difficult to reconcile the finding that Petitioners credibly established their reluctance to continue filling prescriptions for Lyadda and associates with a determination not to give that fact much weight.

In any event, Board apparently bases its cause for discipline on Petitioners filling some prescriptions for Lyadda or his associates during the Lyadda investigation.  The Board states “some of these prescriptions were filled during the time period when Respondents were actively assisting the Sheriff’s Department.”  (AR40-41 ¶6b.) The Board states Abergel “testified that there were prescriptions that he did not fill, so it is not clear why he thought that he had to simply fill all the prescriptions.”  (Id.)  Board does not identify any particular prescription during this time period which had red flags which should have led Abergel to decline it, other than the fact law enforcement had told Abergel Lyadda was under investigation. 

In the opposition brief, Respondent argues there were many red flags independent of law enforcement’s tip-off, such as the fact Lyadda’s associates appeared disheveled and the fact they came in an “invasion” to Petitioner’s pharmacy.  Respondent does cite to any part of the record showing any particular suspicious prescription filled for Lyadda or his associates during this time period.  Given that the Board found Abergel credibly established he was reluctant to fill any prescriptions for Lyadda or his associates and did so in accordance with what he thought Velek wanted, the weight of the evidence does not support a ground for discipline against Petitioners for prescriptions filled for Lyadda or his associates during the investigatory period. 

The foregoing evidence supports Board’s findings that Petitioners failed to meet their corresponding responsibilities and that Petitioners did not act with common sense and professional judgment in their pharmacy duties with respect to filling prescriptions for the Clinic.  Petitioners filled prescriptions for the Clinic, a pill mill, even though Petitioners knew or should have known of suspicious circumstances in the Clinic’s operations.  Petitioners never spoke with any doctors from the Clinic or with prescribing doctors for Lyadda and his associates.  While there appears to be evidence that Petitioners obtained CURES reports and engaged in some due diligence as to some of the prescriptions, Petitioners do not show, with record citation, that they did so for all of the prescriptions or that they were sufficiently diligent under the circumstances. 

The weight of the evidence does not support Board’s findings that Petitioners failed to meet their corresponding responsibilities and that Petitioners did not act with common sense and professional judgment in their pharmacy duties with respect to filling prescriptions for Lyadda or his associates.

            Second Cause for Discipline

            For the second cause for discipline, Board found that Petitioners “are subject to disciplinary action for failure to keep complete accountability under Regulations section 1718, in conjunction with Code sections 4081 and 4332, and Code of Federal Regulations, Title 21, section 1304, and Code section 4113, based on records from July 8, 2010, through December 19, 2012, in that the evidence presented was sufficient to establish that Respondents failed to account for 74 tablets of Dilaudid 4mg, 164

tablets of Oxycodone 30mg and 584 tablets of Endocet 10/325.”  (AR 41.)  Board found that “Abergel performed the stock-on-hand count, and signed the document along with Dr. Venegas.”  (Ibid.) 

“All records of manufacture and of sale, acquisition, receipt, shipment, or disposition of dangerous drugs or dangerous devices shall be at all times during business hours open to inspection by authorized officers of the law, and shall be preserved for at least three years from the date of making. A current inventory shall be kept by every … pharmacy … who maintains a stock of dangerous drugs.”  (Bus. & Prof. Code § 4081(a).)  “‘Current Inventory’ as used in Sections 4081 and 4332 of the Business and Professions Code shall be considered to include complete accountability for all dangerous drugs handled by every licensee enumerated in Sections 4081 and 4332.”  (16 CCR § 1718.) 

Board inspectors conducted an inspection of Druggist on December 19, 2012. (AR 738, AR 2405.)  At the request of Inspector Venegas, Abergel performed a “stock on hand” count of Dilaudid 4mg, Oxycodone 30mg, and Endocent (Percocet) 10/325. (AR 2406, 2421, 2430.)   Inspector Venegas compared the “stock on hand” figures for these three controlled substances with Druggist’s controlled substance inventory of July 8, 2010 that Abergel provided, invoices from Petitioners’ wholesalers for the three drugs during the time period of July 8, 2010 to December 18, 2012, and the pharmacy’s Drug Utilization Reports for the period July 8, 2010 to December 18, 2012.  (AR 792-93, 2407; see also AR 2422, 2478-2923, 2429.)  By comparing these four sets of records and data, Inspector Venegas determined that Druggist had failed to properly account for 74 tablets of Dilaudid 4mg, 164 tablets of Oxycodone 30mg, and 584 tables of Endocet (Percocet) 10/325. (AR 792-93, 2407-08, 2419.)

Petitioners contend that Board’s findings for the second cause for discipline are not supported by the evidence because Inspector Venegas admitted “to his short-term memory loss within the last five years.”  (OB 11.)  While Petitioners do not cite the record, the Board’s decision acknowledges that Venegas admitted at the hearing in 2019 that he “experienced ‘a lot of memory loss’ in the last five years.”  (AR 17.)  However, Board also found “no evidence that Inspector Venegas experienced memory issues during the inspection at issue, or while preparing his report, to which he was able to refer at hearing.”  (AR 17.)  Petitioners do not address that material finding.  Nor do Petitioners address the evidentiary weight of Venegas’ inspection report, which appears to be admissible for its truth under the official records exception to the hearsay rule.  (Evid. Code § 1280; Lake v. Reed (1997) 16 Cal.4th 448, 458-467.)[3]  Exercising its independent judgment on the record, the court is not persuaded that Inspector Venegas’s testimony or inspection report should be discredited simply because he admitted to memory loss at the time of the hearing, which occurred more than five years after the inspection and investigation. 

Petitioners contend that Inspector Venegas did not conduct a “stock on hand” count. (OB 3, 11, 14.)  However, testimony of Venegas, his inspection report, and other evidence supports that Abergel performed the stock on hand count at Venegas’ lawful request as a Board inspector.  (AR 753-54, 2406, 2421, 2430.)  While Petitioners state that “no such proper stock on hand was actually done,” they cite a hearsay letter from Jessica Boger, rather than any testimony from witnesses.  (Reply 6, citing R 4749.)  Petitioners admit that Abergel signed the stock on hand form on December 19, 2012, the date of the inspection.  (Reply 6-7, citing AR 2421.)  Venegas also testified that Abergel signed the stock on hand form, and Petitioners cite no contrary testimony.  (AR 785-786.) 

Petitioners assert that “the stock-on-hand count information was filled after the December 19, 2012 and Petitioner Abergel signature was only for the receipt of last inventory and DEA reports taken by inspector Venegas.”  (OB 12.)  Petitioners state that “[t]he corresponding boxes were empty on the inspection day and only the bottom portion was filled, with even the date entered by Venegas being incorrect (i.e., December 18, 2012, not December 19, 2012).”  Petitioners speculate that “these entries were filled at a much later date.”  (Ibid.)  As support for these assertions, Petitioners cite Respondent’s Exhibit 4 at pages 17, 19, and 28.  (See AR 2403.)  Petitioners cite no evidence that Inspector Venegas or someone else completed the entries after the fact, or that the entries on the form did not correspond to the stock on hand count performed by Abergel.  That Venegas wrote the inspection date incorrectly does not materially detract from the evidence that a stock on hand count was performed on December 19, 2012, showing Druggist had 159 of Dilaudid 4mg in stock, and zero of Oxycodone 30mg and Endocent (Percocet) 10/325 in stock.  (AR 2421.)  Those numbers are consistent with the drug audit performed by Venegas.  (AR 2407, 2419.) 

Petitioners contend that “the inspection report did not account for the fact that Petitioners had controlled substances on hand in an on-location safe to fill prescriptions.”  (OB 12, citing State’s Ex. 4, at 20.)  Petitioners contend that Venegas’ accounting was incorrect because he “only took the July 8, 2010 inventory page, (State’s Ex. 4, at 20).”  (OB 13.)  Petitioners contend that the “inventory actually consisted of four pages (Respondent’s Exhibit Volume, Exs. A-P, at 60- 63) and was done over two different dates.”  (OB 12-13, citing Respondent’s Exhibit Volume, Exs. A-P, at 60- 63.)  Petitioners’ record citations do not show any prejudicial abuse of discretion in the Board’s findings.  (CCP § 1094.5(b).)  The Board’s “Official Receipt” of documents from the December 19, 2012, inspection states that Petitioners provided Inspector Venegas with a single page of controlled substances inventory, dated July 8, 2010.  (AR 2430, 786-787.)  The inventory documents that Petitioners cite are dated April 7, 2010, and Petitioners cite no evidence that these inventory documents were provided to Venegas or reflected the current inventory of Druggist.  (See AR 4768-71.) 

Petitioners argue that “the inspection report mixed Dilaudid count with hydromorphone count even though they have two different national drug codes.”  (OB 13, citing State’s Ex. 4, at 68, Column B lines 2-3, 7; State’s Ex. 4 at 17-19; and Respondent Exhibits Volume, Exhibits A-P, on page 54.)  Relatedly, Petitioners argue that their own exhibits showed that Venegas’ accounting was incorrect.  (OB 13.)  Petitioners’ citations to Complainant’s Exhibit 4 do not support Petitioners’ position that certain drugs were improperly counted together.  Petitioners cite no testimony from a knowledgeable pharmacist or inspector stating that it was improper to count Dilaudid and hydromorphone together.  Petitioners’ hand-written chart at page 54 of Exhibits A-P does not show that Dilaudid and hydromorphone were improperly counted together or that there was any error in Venegas’ accounting.  (See AR 4762.)   Petitioners cite no testimony explaining how this chart was prepared. 

The court has considered all of Petitioners’ arguments and record citations in reply.  (Reply 6-9.)  Many of these same arguments were made in the opening brief and addressed above.  In reply, Petitioners argue that Venegas’ accounting was wrong, but they cite no testimony of a pharmacist or expert that supports their position.  Their citations to a hand-written chart (AR 4762) without any supporting foundation, and similar evidence, do not show an error in Venegas’ accounting.  Petitioners also fail to address all evidence relied upon by Venegas and by Board, including invoices of drugs purchased and Druggist’s Drug Utilization Reports.  (See AR 18-23, ¶¶ 20-36; see also AR 2422, 2478-2923, 2429.)  Without addressing all material evidence, Petitioners do not show that Board’s findings are against the weight of the evidence.

The Board’s findings and legal conclusions for the second cause for discipline are supported by the weight of the evidence. 

            Third Cause for Discipline

             Board found that Petitioners “failed to timely report the September 3, 2012, loss of 400 Hydrocodone/apap 5/500, 200 Hydrocodone/apap 7.5/750, 480 Hydrocodone/apap 10/650, 180 Hydrocodone/apap 10/325 and 260 Hydrocodone/apap 10/325.”  (AR 41; see also AR 32-33 at ¶¶ 63a-63d.)  Accordingly, Board concluded that Petitioners are subject to discipline on the third cause for discipline for failure to notify Board of the loss of controlled substances, in violation of title 16, California Code of Regulations, section 1715.6 and Business and Professions Code section 4113.  (AR 41.) 

A pharmacist-in-charge “shall be responsible for a pharmacy’s compliance with all state and federal laws and regulations pertaining to the practice of pharmacy.”  (Bus. & Prof. Code § 4113(c).)  Regulation section 1715.6 states that the pharmacy owner “shall submit to the Board a report containing the information in subdivision (b) no later than thirty (30) days after the date of discovery of the following: (1) Any loss of a controlled substance in one of the following categories that causes the aggregate amount of unreported losses discovered in that category, on or after the same day of the previous year, to equal or exceed: (A) For tablets, capsules, or other oral medication, 99 dosage units….” 

The weight of the evidence supports Board’s findings for the third cause for discipline.  Complainant submitted a Certificate of Non-Receipt, signed by Board’s Executive Officer, certifying that Board’s records show that Druggist did not report a drug loss to Board reflecting losses that occurred on or about September 3, 2012.  (AR 4614.)  Abergel admitted to Inspector Venegas that he had not notified the Board of a break-in that occurred on September 3, 2012 and which resulted in the loss of controlled substances. (AR 2406.) Abergel also signed an inspection report that so stated.  (AR 2427-29.) Petitioners’ response to the Inspection Report, dated December 28, 2012, did not dispute the violation for failing to report the drug loss. (AR 2431.) Rather, Petitioners’ response indicated that corrective action had been taken in the form of “report[ing] the DEA 106 form for date 09/03/12 to the Board.” (AR 2431.)

            In their opening brief, Petitioners do not dispute that this evidence supports Board’s findings and conclusions for the third cause for discipline.  Petitioners now argue that they actually did send a letter to Board notifying it of the break-in, but that “Petitioners have come to understand years later was undeliverable due to an unfortunate typo inverting a number on the Board’s address.”  (OB 14-15.)  Petitioners do not cite to the record and they do not show that this assertion was raised in the administrative proceedings.  The court reviews the findings that were made by Board.  Petitioners’ new claim, without record citation, does not show any prejudicial abuse of discretion in Board’s findings. 

The Board’s findings and legal conclusions for the third cause for discipline are supported by the weight of the evidence. 

Penalty

“The propriety of a penalty imposed by an administrative agency is a matter vested in the discretion of the agency, and its decision may not be disturbed unless there has been a manifest abuse of discretion.” (Williamson v. Board of Medical Quality Assurance (1990) 217 Cal.App.3d 1343, 1347.)   If reasonable minds can differ with regard to the propriety of the disciplinary action, there is no abuse of discretion.  (County of Los Angeles v. Civil Service Commission (1995) 39 Cal.App.4th 620, 634.)  “The revocation or suspension of a license is not penal, but rather, the Legislature has provided for such to protect the life, health and welfare of the people at large ….”  (Furnish v. Board of Medical Examiners (1957) 149 Cal.App.2d 326, 331.) 

            Petitioners briefly argue that “a five-year sentence is manifestly unjust and a clear abuse of discretion, particularly in light of the clear embarrassment and remorse Petitioner Abergel has exhibited for his interactions with the Clinic and the reality that Petitioners have never had disciplinary issues prior to the Decisision after Reconsideration.”  (Opening brief, p. 11.)  In light of the court’s ruling that the weight of the evidence does not support a cause for discipline for filling prescriptions for Lyadda or his associates, the court is inclined to remand the matter to the Board to reconsider penalty.  The parties may address at the hearing the appropriate remedy.

Conclusion

The weight of the evidence does not support a cause for discipline for filling prescriptions for Lyadda or his associates.  In all other respects Board’s findings are supported by the weight of the evidence.